US v. Wendell Betancourt, No. 12-7824 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7824 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WENDELL EDWARD BETANCOURT, a/k/a Shawn Nelson, a/k/a Fire, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:01-cr-00025-JPB-JES-5; 3:12-cv-00083JPB-JES) Submitted: January 30, 2013 Decided: February 7, 2013 Before MOTZ, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Wendell Edward Betancourt, Appellant Pro Se. Paul Camilletti, Thomas Oliver Mucklow, Assistant United Attorneys, Martinsburg, West Virginia, for Appellee. Thomas States Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Wendell Edward Betancourt seeks to appeal the district court s orders denying and dismissing his successive 28 U.S.C.A. § 2255 (West Supp. reconsideration. justice or 2012) motion and denying his motion for The orders are not appealable unless a circuit judge issues a certificate U.S.C. § 2253(c)(1)(B) (2006). of appealability. 28 A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Betancourt has not made the required showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Additionally, we construe Betancourt s notice of appeal, informal brief, and supplemental informal brief as an 2 application to file a second or successive § 2255 motion. United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp. 2012). Betancourt s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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